Under the judicially-created doctrine of patent exhaustion, "[T]he initial authorized sale of a patented item terminates all patent rights to that item" (1) In 2012, the Supreme Court of the United States granted certiorari in Bowman v. Monsanto Co., a case in which the petitioner sought a dramatic expansion of the patent exhaustion doctrine. In Bowman, the petitioner argued that the authorized purchase of a patented product not only exhausts all patent rights with respect to the item that was the subject of the authorized sale, but also confers upon the purchaser the right to make and distribute an unlimited number of perfect copies of the item without the permission of the patent owner, and without an obligation to pay any compensation to the patent owner. (2) On its face, the petition seems almost frivolous, analogous to arguing that the purchaser of a single DVD copy of a copyrighted movie should be permitted to make an unlimited number of unauthorized copies of the movie and distribute or sell the copies without any obligation to compensate the copyright owner.

Of course, copyright law is specifically aimed at preventing the unauthorized copying of protected works, but the same principles have been applied in the context of patents. It is well established, for example, that the purchaser of a patented item is generally not authorized to reconstruct the item if it becomes damaged, let alone make new copies of it. (3) The purchaser of a patented bicycle is certainly permitted to repair the bike, but once the bicycle has worn out beyond repair she is not allowed to rebuild it, and she is certainly not authorized to use the bicycle as a template for manufacturing new copies of the bicycle without the patentee's permission.

What would prompt the Supreme Court to grant certiorari in a case raising such an argument? And why would a large contingent of amici flock to support the petitioner's facially meritless position? The answer is that this was not a case involving bicycles, but instead a product having a very special attribute. The patented product at the center of the litigation was a genetically engineered soybean, and the special attribute that distinguishes soybeans from the vast majority of patented inventions is their propensity to self-replicate. …

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